Citation Nr: 1047016
Decision Date: 12/16/10 Archive Date: 12/22/10
DOCKET NO. 09-03 384A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Sioux Falls,
South Dakota
THE ISSUES
1. Whether a December 2007 reduction from 70 percent to 50
percent for posttraumatic stress disorder (PTSD) was proper.
2. Whether a December 2007 discontinuance of entitlement to a
total disability rating based on individual unemployability
(TDIU) was proper.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Jennifer Hwa, Counsel
INTRODUCTION
The Veteran served on active duty from June 1964 to May 1966.
This matter comes before the Board of Veterans' Appeals (Board)
from a December 2007 rating decision of a Department of Veterans
Affairs (VA) Regional Office (RO) that reduced the Veteran's PTSD
rating from 70 percent to 50 percent disabling, and discontinued
the Veteran's entitlement to TDIU, both effective March 1, 2008.
The Veteran testified before the Board in July 2010.
FINDINGS OF FACT
1. The Veteran's PTSD has been manifested by suicidal ideation;
near-continuous panic or depression affecting the ability to
function independently, appropriately, and effectively; impaired
impulse control; difficulty in adapting to stressful
circumstances; and difficulty in establishing and maintaining
effective work and social relationships. There has been no
sustained improvement in the Veteran's PTSD.
2. Actual employment has not been established by clear and
convincing evidence as of March 1, 2008.
CONCLUSIONS OF LAW
1. The December 2007 reduction of the rating for the Veteran's
PTSD, from 70 percent to 50 percent, effective March 1, 2008, was
not proper. 38 U.S.C.A. §§ 1155, 5112(b)(6) (West 2002); 38
C.F.R. §§ 3.105(e), 3.344, 4.1, 4.10, 4.130, Diagnostic Code 9411
(2010).
2. The December 2007 discontinuance of the TDIU, effective March
1, 2008, was not proper. 38 U.S.C.A. §§ 1155, 5107 (West 2002 &
Supp. 2010); 38 C.F.R. §§ 3.105, 3.340, 3.341, 3.343, 4.16
(2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Reduction
A Veteran's disability rating shall not be reduced unless an
improvement in the disability is shown to have occurred. 38
U.S.C.A. § 1155 (West 2002). Prior to reducing a Veteran's
disability rating, VA is required to comply with several general
VA regulations applicable to all rating-reduction cases,
regardless of the rating level or the length of time that the
rating has been in effect. Generally, when reduction in the
rating of a service-connected disability is contemplated and the
lower rating would result in a reduction or discontinuance of
compensation payments, a rating proposing the reduction or
discontinuance will be prepared setting forth all material facts
and reasons. The beneficiary must be notified at his latest
address of record of the contemplated action and furnished
detailed reasons therefore. The beneficiary must be given 60
days for the presentation of additional evidence to show that
compensation payments should be continued at the present level.
38 C.F.R. § 3.105(e) (2010). In the advance written notice, the
beneficiary will be informed of the right to a pre-determination
hearing, and if a timely request for such a hearing is received
within 30 days, benefit payments shall be continued at the
previously established level pending a final determination. 38
C.F.R. § 3.105(i)(1) (2010).
A July 2000 rating decision granted service connection and a 30
percent disability rating for PTSD, effective February 2, 2000.
A July 2001 rating decision increased the disability rating from
30 percent to 70 percent, effective December 15, 2000. A
December 2007 rating decision reduced the disability rating from
70 percent to 50 percent, effective March 1, 2008.
The record shows that in a September 2007 letter, the Veteran was
notified of a proposal to reduce the disability rating assigned
for his PTSD. He was additionally notified that he had 60 days
for the presentation of additional evidence to show that
compensation payments should be continued at the present level,
and that if he did not respond within those 60 days, his
disability rating would be reduced, effective March 1, 2008. The
record shows that the Veteran did not submit any additional
evidence showing that his PTSD had not improved. However, he did
request a pre-determination hearing within 30 days of the
September 2007 notice letter, and such a hearing was held in
October 2007.
Evaluating the chronology of the process described above, the
Board finds that the RO complied with the procedures required
under 38 C.F.R. § 3.105(e) for reducing the Veteran's disability
rating by notifying him of his rights and giving him an
opportunity for a hearing and time to respond.
In certain rating reduction cases, VA benefits recipients are to
be afforded greater protections. 38 C.F.R. § 3.344 (2010). That
regulation provides that rating agencies will handle cases
affected by change of medical findings or diagnosis, so as to
produce the greatest degree of stability of disability
evaluations consistent with the laws and VA regulations governing
disability compensation and pension. However, those
considerations are applicable only for ratings which have
continued for long periods at the same level (five years or
more), and that they do not apply to disabilities which have not
become stabilized and are likely to improve. 38 C.F.R. §
3.344(c) (2010). Reexaminations disclosing improvement, physical
or mental, in those disabilities will warrant a reduction in
rating. Similar protections are afforded to Veterans who have
been awarded a total rating based on unemployability. 38 C.F.R.
§ 3.343 (2010).
Under those criteria regarding reductions, the RO must find the
following: (1) based on a review of the entire record, the
examination forming the basis for the reduction is full and
complete, and at least as full and complete as the examination
upon which the rating was originally based; (2) the record
clearly reflects a finding of material improvement; and (3) it is
reasonably certain that the material improvement found will be
maintained under the ordinary conditions of life. 38 C.F.R. §
3.344(a)-(b) (2010); Kitchens v. Brown, 7 Vet. App. 320 (1995);
Brown v. Brown, 5 Vet. App. 413 (1993).
Ratings on account of diseases subject to temporary or episodic
improvement, such as manic depressive or other psychotic
reaction, will not be reduced on any one examination, except in
those instances where all the evidence of record clearly warrants
the conclusion that sustained improvement has been demonstrated.
The Board must also consider when there is any material
improvement shown by the evidence, whether it is reasonably
certain that the improvement will be maintained under the
ordinary conditions of life. 38 C.F.R. § 3.344(a) (2010). The
rules regarding stability of disability evaluations are
specifically applicable to ratings which have continued for five
years or more at the same level. 38 C.F.R. § 3.344(c) (2010).
The 70 percent rating for the Veteran's PTSD was in effect from
December 15, 2000, to March 1, 2008, over five years. Thus, the
rules regarding stability of disability ratings are applicable.
The Veteran's PTSD is one of those contemplated by 38 C.F.R. §
3.344(a), and the rating therefore may not be reduced on the
basis of any one examination, unless all the evidence of record
clearly warrants the conclusion that sustained improvement has
been demonstrated. Brown v. Brown, 5 Vet. App. 413 (1993). The
Board will now consider the propriety of the rating reduction.
Disability ratings are determined by applying the criteria set
forth in the VA Schedule for Rating Disabilities found in 38
C.F.R. Part 4 (2010). The Board attempts to determine the extent
to which the Veteran's service-connected disability adversely
affects the ability to function under the ordinary conditions of
daily life, and the assigned rating is based, as far as
practicable, upon the average impairment of earning capacity in
civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§
4.1, 4.10 (2010).
Where there is a question as to which of two ratings shall be
applied, the higher rating will be assigned if the disability
picture more nearly approximates the criteria required for that
rating. Otherwise, the lower rating will be assigned. 38 C.F.R.
§ 4.7 (2010). The Board will also consider entitlement to staged
ratings to compensate for times since filing the claim when the
disability may have been more severe than at other times during
the course of the claim on appeal. Fenderson v. West, 12 Vet.
App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).
Under the criteria of 38 C.F.R. § 4.130, Diagnostic Code 9411, a
50 percent rating is assigned for occupational and social
impairment with reduced reliability and productivity due to such
symptoms as: flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment of
short- and long-term memory (e.g., retention of only highly
learned material, forgetting to complete tasks); impaired
judgment; impaired abstract thinking; disturbances of motivation
and mood; and difficulty in establishing and maintaining
effective work and social relationships.
A 70 percent rating is assigned when the psychiatric condition
produces occupational and social impairment, with deficiencies in
most areas, such as work, school, family relations, judgment,
thinking, or mood, due to such symptoms as: suicidal ideation;
obsessional rituals which interfere with routine activities;
speech intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the ability to function
independently, appropriately and effectively; impaired impulse
control (such as unprovoked irritability with periods of
violence); spatial disorientation; neglect of personal appearance
and hygiene; difficulty in adapting to stressful circumstances
(including work or a work-like setting); and an inability to
establish and maintain effective relationships.
A 100 percent rating is assigned when there is total occupational
or social impairment due to such symptoms as: gross impairment in
thought processes or communication; persistent delusions or
hallucinations; grossly inappropriate behavior; persistent danger
of hurting self or others; intermittent inability to perform
activities of daily living (including maintenance of minimal
personal hygiene); and disorientation to time or place, memory
loss for names of close relatives, own occupation, or own name.
38 C.F.R. § 4.130 (2010).
A July 2001 granted an increased rating of 70 percent for PTSD,
and a TDIU rating, based upon the findings of a March 2001 VA
examination. The examiner noted that the Veteran was being
treated or evaluated by three different physicians. He was quite
disabled by PTSD symptoms of recurrrent intrusive recollections
of events; recurrent distressing dreams of events; flashbacks;
intense psychological stress; physiological reactivity to cues
that resembled his traumatic events; efforts to avoid thoughts,
activities, people, and places associated with the trauma;
inability to recall important aspects of the trauma; markedly
diminished interest in activities; feeling detached and estranged
from others, especially his children and grandchildren;
difficulty falling and staying asleep; inability to control
outbursts and anger; marked difficulty with concentration;
hypervigilence; and markedly exaggerated startle response. The
Veteran also had a sense of foreshortened future and avoidance of
funerals. He had taken anger management classes, without much
benefit. He was vigorously treated with Prozac, with only a
modicum of response.
Mental status examination found him well-groomed. Speech was
marked with an obvious impediment that worsened with anxiety or
when flustered. That happened especially when discusses his
trauma. He became quite distraught and obviously demonstrated
increased physiological reactivity. There were no impairments of
process, but he had difficulty communicating related to anxiety
symptomatology and froze in the chair. There wer no delusions or
hallucinations. There was no inappropriate behavior. The
Veteran was not suicidal or homicidal. He had a good ability to
maintain daily personal hygiene and activities of daily living.
He was oriented times three. He remembered four of four objects
at five minutes with interference. Remote memory was intact.
Cognitive testing found some subtle impairments. He had marked
difficulty doing serial sevens, in spite of being good in high
school math. He became flustered. He was able to do serial
threes. There was clear anxiety, but no full-blown panic
attacks. He had significant depression despite medication. He
had sleep impairment, with sluggishness and inability to function
during the day. He was frustrated by his short temper. He was
competent for VA purposes.
He was unemployed for over a year. Because of poor impulse
control, he angered his former employer and was rejected for an
opportunity to return. He had a history of alcohol abuse, with
sobriety for 18 years. The examiner diagnosed PTSD and assigned
a GAF score of 48 during the previous year, entirely due to PTSD
symptomatology.
The examiner provided an addenedum that the Veteran had
difficulty taking orders from a supervisor due to irritability
and anger. That continually disabled him. PTSD was deemed the
primary cause of his unemployment. He was quite unemployable.
It was unclear whether he was totally unemployable. He was
motivated to have employment, but unable to do so. A further
evaluation was recommended to determine whether the
unemployability would remain permanent. The examiner found him
totally unemployable due to PTSD.
On VA examination in July 2006, the Veteran was found to be a
pleasant man appearing approximately his stated age. It was
noted that he was dressed in an orange prison uniform, was
shackled in handcuffs, and had a law enforcement escort. The
Veteran was polite and cooperative at all times with mildly
anxious affect. He was tearful at times and also had a stutter.
His overall speech was coherent with a normal rate and tone, and
his thoughts were logical and connected without suicidal,
homicidal, or paranoid ideation. The Veteran stated that if he
were not in prison, he would probably be more likely to get into
fights with people. He also maintained that if he were not in
prison, he would be able to more easily avoid the type of people
who might pester him that he encountered while incarcerated and
that he would attempt to avoid such people if he were outside of
prison. The examiner found no hallucinations, delusions, or
ideas of reference. The Veteran remembered two out of three
things without prompting and three out of three things with
prompting after five minutes. He had fair insight and judgment.
The Veteran was noted to have a history of a suicide attempt,
which was a remote event. The examiner found that the Veteran's
chronic PTSD was moderate and that his current psychosocial
stressors were moderate due to mental health needs and his social
situation. He was noted to have had recent increased difficulty
with re-experiencing his traumatic experiences and was assigned a
Global Assessment of Functioning (GAF) score of 45.
An April 2006 medical report indicated that the Veteran was
treated after he experienced a flashback regarding people being
thrown overboard and drowning. He was crying and laying on the
floor shaking.
On VA examination in August 2007, the Veteran complained of
nightmares once or twice a month, intrusive memories about
Vietnam on a daily basis, a couple flashbacks per year, trouble
staying asleep, anger and irritability issues, concentration
difficulty, some hypervigilance, startling easily, depression in
the mornings, feelings of guilt, occasional psychomotor
retardation, occasional suicidal thoughts, feelings of
hopelessness for his future, feelings of worthlessness, crying
episodes once a month, detachment and estrangement from others,
and emotional numbness and inability to have loving feelings.
The Veteran stated that he used to work in the laundry department
at the prison but that he had not worked at all in the past 12
months and did not currently have a job in the prison. He
reported having a good relationship with his son and two
grandsons. He denied any violence or assaultiveness.
Examination revealed that the Veteran was cooperative with fair
to good eye contact and grooming. His speech was of normal rate
and volume. He had a good mood that currently seemed euthymic
and a bright affect. His thoughts were coherent and goal-
directed with no loose associations, tangential thoughts, or
flight of ideas. The Veteran had suicidal thoughts once a month
as well as occasional homicidal thoughts that he stated he would
possibly act on if he were released from prison. He denied any
paranoid thoughts, hallucinations, and delusions, but regarding
obsessions or compulsions, he mentioned that he always had to
check to see if things were unplugged. He was alert and oriented
times three. His memory appeared intact, and he only had slight
trouble with item recall. His abstractive ability and attention
were good. He had impairment in concentration with both serial
sevens and spelling world backwards. Insight was fair to good,
and judgment seemed fair. The examiner assigned the Veteran a
GAF score of 55. He stated that the Veteran seemed to have
moderate impairment in social functioning but that it was
difficult to estimate any degree of occupational impairment.
At an April 2009 VA examination, the Veteran stated that he had
worked in the prison laundry room two to three years ago but that
he had difficulty functioning when there were too many people
around. He complained of nightmares two to three times a week
that woke him up at night and prevented him from getting back to
sleep. He reported that since his last VA examination, he had
been hospitalized in a psychiatric unit twice. He maintained
that he did not feel like doing much of anything and that he did
not have many relationships other than going to church with one
other inmate on Sundays. He reported episodic suicidal ideation,
with no intent, about once a month and admitted homicidal
feelings when around the younger inmates. Examination revealed
that the Veteran interacted in a friendly and cooperative manner
and that he did not show any signs of aggression or hostility.
His mood was euthymic and his affect was appropriate. He denied
any hallucinations, delusions, obsessions, or compulsions. He
did report episodic homicidal and suicidal ideation, which he
dealt with by escaping from the source of stress and engaging in
therapy. The Veteran was oriented in three spheres, and thought
content was clear and coherent. Remote memory was intact, and
immediate memory was judged as being fair. There was slight
difficulty with concentration. Insight was good. The examiner
assigned the Veteran a GAF score of 55. The examiner found that
it did not appear that the Veteran's symptoms had worsened since
the last VA examination. The examiner noted that the Veteran
avoided others but was capable of interacting appropriately in
superficial social settings and chose to withdraw from others
when he became upset rather than getting into significant amounts
of conflict. The examiner also observed that the Veteran was
able to work in the laundry room if left alone.
Post-service medical records dated from February 2004 to March
2009 show that the Veteran received treatment for PTSD, major
depressive disorder, and acute adjustment disorder with anxious
and depressed mood. He suffered from such symptoms as sleep
difficulties, nightmares, hallucinations, dissociative
flashbacks, feeling uncomfortable being around others, anxiety,
spontaneous crying with anergia and amotivation, poor
concentration and decision-making, irritability, overreacting to
situations, feelings of hopelessness, a panic attack, loose
associations and some circumstantial thought pattern, and
suicidal ideation.
The Veteran testified before a Decision Review Officer in October
2007, October 2008, and August 2009, and at a travel board
hearing before the Board in July 2010. Testimony revealed that
the Veteran suffered from anger, irritability, poor impulse
control, difficulty in concentration, memory problems, suicidal
and homicidal ideation, nightmares, sleep difficulties,
flashbacks, panic attacks, and crying spells. He testified that
he had only one friend in prison and that only family members
visited him in prison. He reported that he had to be isolated
from the rest of the prison population and that even when he was
not in prison, he tended to isolate himself from society as well.
The Veteran also testified that he had had to be intermittently
hospitalized in the psychiatric unit of the prison. He stated
that he had been unable to keep a job in the prison. He
maintained that he had worked in the laundry room but that he had
lost this job when other people started working with him and he
was unable to deal with them. He reported that he was currently
isolated from the rest of the prison population and that he was
allowed to go outdoors to do some gardening by himself each
morning.
According to the American Psychiatric Association's Diagnostic
and Statistic Manual of Mental Disorders, Fourth Edition (DSM-
IV), a Global Assessment of Functioning (GAF) score of 41-50
indicates serious symptoms (e.g., suicidal ideation, severe
obsessional rituals, frequent shoplifting) or any serious
impairment in social, occupational, or school functioning (e.g.,
no friends, unable to keep a job). A GAF score of 51-60
indicates moderate symptoms (e.g., flat affect and circumstantial
speech, occasional panic attacks) or moderate difficulty in
social, occupational, or school functioning (e.g., few friends,
conflicts with peer or co-workers).
The Board finds that the reduction of the Veteran's psychiatric
disorder from 70 percent to 50 percent was not proper. Although
the Veteran received GAF scores of 55 in August 2007 and April
2009, indicative of moderate symptoms, the competent medical
evidence shows that the Veteran's psychiatric disability was more
indicative of severe symptoms, since December 15, 2000, the
effective date of the Veteran's 70 percent disability rating.
The competent medical evidence shows that on VA examination in
July 2006, the Veteran was found to have no hallucinations,
delusions, or ideas of reference. His speech and thought
processes were logical and coherent, and he had fair insight and
judgment. He appeared to have mild memory impairment. The
Veteran was noted to have a history of a suicide attempt, which
was a remote event, and recent increased difficulty with re-
experiencing his traumatic experiences. Based on that
examination, an August 2006 rating decision continued the
Veteran's disability rating for PTSD at 70 percent.
The competent medical evidence since the August 2006 rating
decision shows that the Veteran has continued to experience the
same symptoms as those on the July 2006 VA examination while
additionally suffering from suicidal and homicidal ideation, the
need to be isolated from others, impaired impulse control,
difficulty in adapting to stressful circumstances, and difficulty
in establishing and maintaining effective work and social
relationships. The Veteran had to be hospitalized on several
occasions due to his panic attacks and flashbacks and was unable
to hold any jobs in the prison because he could not be around
other people. He was currently isolated from the rest of the
prison population. The Veteran's psychiatric symptomatology has
remained consistent since December 15, 2000, the date he was
assigned a 70 percent disability rating for PTSD. While the
Veteran was assigned GAF scores of 55 at his August 2007 and
April 2009 VA examinations, the Board finds that the overall
evidence of record does not demonstrate sustained improvement of
the Veteran's PTSD, such that a reduction in the rating was
proper. The Board finds that the competent medical evidence
supports a rating of 70 percent for the Veteran's service-
connected PTSD, as the Veteran's overall symptomatology more
nearly approximates the criteria for the 70 percent rating.
Accordingly, the Board finds that a reduction in the 70 percent
disability rating was not warranted and that the Veteran is
entitled to a restoration of the 70 percent disability rating for
his PTSD, effective March 1, 2008.
Furthermore, the Board finds that to the extent that any material
improvement is shown, the evidence does not demonstrate that it
is reasonably certain that any improvement will be maintained
under the ordinary conditions of life. The Veteran has been
isolated while incarcerated. He lost his job in the prison
laundry and is allowed to occasionally work alone gardening.
Therefore, the Board finds that to the extent that any
improvement has been shown, it is not reasaonbly certain that it
would be maintained under the ordinary conditions of life because
of the Veteran's current isolated and sheltered position.
In sum, the weight of the credible evidence demonstrates that the
December 2007 reduction of the disability rating for PTSD from 70
percent to 50 percent was not proper. Therefore, restoration of
the 70 percent rating, effective March 1, 2008, is warranted.
Reasonable doubt has been resolved in favor of the claimant in
making this decision. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert
v. Derwinski, 1 Vet. App. 49 (1990).
Discontinuance of TDIU
At the outset, the Board notes that the procedural requirements
for notice of termination of individual unemployability were met.
38 C.F.R. § 3.105(e) (West 2002). Specifically, a September 2007
letter notified the Veteran of the proposed termination of
individual unemployability benefits. In that letter, the Veteran
was notified of the opportunity for a hearing and was given 60
days in which to submit additional evidence to show why his
entitlement to individual unemployability should be continued.
The record shows that the Veteran did not submit any additional
evidence showing that his entitlement to TDIU should be
continued. However, he did request a pre-determination hearing
within 30 days of the September 2007 notice letter, and such a
hearing was held in October 2007.
Evaluating the chronology of the process described above, the
Board finds that the RO complied with the procedures required
under 38 C.F.R. § 3.105 for discontinuing the Veteran's
entitlement to TDIU by notifying him of his rights, and giving
him an opportunity for a hearing and time to respond. 38 C.F.R.
§ 3.105(e) (West 2002).
Turning to an analysis of the propriety of the termination of
TDIU, VA regulations provide that a total disability is
considered to exist when there is any impairment that is
sufficient to render it impossible for the average person to
follow a substantially gainful occupation. 38 C.F.R. §
3.340(a)(1) (2010). The law also provides that a total
disability rating based on individual unemployability due to
service-connected disability may be assigned where the Veteran is
rated at 60 percent or more for a single service-connected
disability, or rated at 70 percent for two or more service-
connected disabilities and at least one disability is rated at
least at 40 percent, and when the disabled person is unable to
secure or follow a substantially gainful occupation as a result
of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341,
4.16(a) (2010).
In addition, TDIU may be awarded on an extra-schedular basis if a
Veteran fails to meet the applicable percentage standards
enunciated in 38 C.F.R. § 4.16(a), but is still unable to secure
and follow a substantially gainful occupation by reason of
service-connected disabilities. 38 C.F.R. § 4.16(b) (2010).
Marginal employment is not considered to be substantially gainful
employment. Marginal employment generally shall be deemed to
exist when a Veteran's earned annual income does not exceed the
amount established by the United States Department of Commerce,
Bureau of the Census, as the poverty threshold for one person.
Marginal employment may also be held to exist, on a facts-found
basis (includes but is not limited to employment in a protected
environment such as a family business or sheltered workshop),
when earned annual income exceeds the poverty threshold.
Consideration shall be given in all claims to the nature of the
employment and the reason for termination. 38 C.F.R. § 4.16(a)
(2010).
Regarding termination of total disability ratings, VA regulations
provide that actual employability must be established by clear
and convincing evidence. If a Veteran begins to engage in a
substantially gainful occupation during the period beginning
after January 1, 1985, the Veteran's rating may not be reduced
solely on the basis of having secured and followed such
substantially gainful occupation unless the Veteran maintains the
occupation for a period of 12 consecutive months. 38 C.F.R. §
3.343(c)(2) (2010).
Additionally, neither participation in, nor the receipt of
remuneration as a result of participation in, a therapeutic or
rehabilitation activity shall be considered evidence of
employability. 38 C.F.R. § 3.343(c) (2010).
On VA examination in August 2007, the Veteran reported that he
had not worked at all in the previous 12 months and that he did
not have a job in the prison. He stated that he used to work in
the laundry department at the prison. The examiner found that it
was difficult to estimate any degree of occupational impairment.
In a December 2008 letter, the Veteran's private psychiatrist
stated that the Veteran's PTSD symptoms were still not controlled
with medical interventions. The psychiatrist opined that at that
point, employment would be difficult for the Veteran to maintain
until his symptoms were better controlled.
On VA examination in April 2009, the Veteran stated that he had
worked in the prison laundry room about two to three years
previously but that when there were too many people around, he
had difficulty functioning. He reported that as long as there
was no one in the laundry or any other work setting, he was fine.
He maintained that he felt he could be employed if he was allowed
to work alone.
The Veteran testified before a Decision Review Officer in October
2007, October 2008, and August 2009, and at a travel board
hearing before the Board in July 2010. Testimony revealed that
the Veteran had been unable to keep a steady job in the prison.
He testified that he had previously worked in the laundry room
but that he had lost this job when other people started working
with him and he was unable to deal with them. He reported that
he was currently isolated from the rest of the prison population
and that he was allowed to go outdoors to do some gardening by
himself each morning.
In light of the evidence, the Board finds that restoration of the
total disability rating based on individual unemployability is
warranted. The evidence of record does not show the Veteran's
actual employability to a clear and convincing evidence standard
as of March 1, 2008. While the examiner in April 2009 indicated
that the Veteran felt he was able to be employed as long as he
worked alone, there is no evidence of actual employability. The
Veteran's private psychiatrist stated in December 2008 that
employment would be difficult for the Veteran to maintain until
his symptoms were better controlled. The evidence also showed
that the Veteran had been unable to maintain employment in the
laundry room in prison because he could not deal with other
people being in the room. Additionally, although the Veteran was
currently working in the prison at a gardening job, the Board
finds that such activity constitutes participation in a
therapeutic or rehabilitation activity and is not considered
evidence of employability, as the Veteran is isolated from the
entire prison population and works on his gardening alone.
Accordingly, the Board finds that the termination of the
Veteran's total disability rating based on individual
unemployability was not proper and the Veteran's total disability
rating based on individual unemployability is restored, effective
March 1, 2008. Reasonable doubt has been resolved in favor of
the Veteran in making this decision. 38 U.S.C.A. § 5107(b) (West
2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
Entitlement to restoration of a 70 percent rating for PTSD,
effective March 1, 2008, is granted.
Entitlement to restoration of a TDIU rating, effective March 1,
2008, is granted.
____________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs